Code = speech

[Steve]

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Professor Argues for Free Speech in Computer Tongues

Pamela Mendels
NY Times 3/5/99


The instructions written by computer programmers are a form of
expression as fully entitled to free-speech protection as a
published article or the notes in a musical score. 

That was one of the chief arguments made this week as a Cleveland
law school professor sought to have a federal appeals court overturn
a decision upholding a law that prevents him from publishing
encryption-related course materials online. 

The case brought by Peter D. Junger, who teaches a course in
computers and the law at Case Western Reserve University in
Cleveland, is one of a trio of closely watched lawsuits challenging
U.S. export restrictions on strong encryption software, which
scrambles data to keep it private. 

The restrictions apply to the software's source code, the series of
commands written by the programmer that is converted or "compiled"
into the machine-level code that the computer can run. Federal
officials argue that the export regulations are necessary for
national security, to prevent terrorists and criminals from hiding
their communications. 

Junger, as part of his course, requires students to use a short
encryption program he has written to help teach them about
computing. He would like to put the source code for the program on
his Web site, but believes that encryption regulations prevent this
without a license from the U.S. Department of Commerce. This
requirement, Junger says, is an unwarranted intrusion into his
Constitutional free speech rights. 

In ruling against Junger last year, Judge James S. Gwin of the
United States District Court for the Northern District of Ohio, said
that source code was not so much speech as a function functional
device, like telephone circuitry, and, therefore, outside the scope
of First Amendment protection. 

But Junger's lawyers, in a 66-page brief filed Monday in the United
States Court of Appeals for the Sixth Circuit in Cincinnati, argue
that source code, which looks to an untrained eye like a combination
of mathematical formulas, scattered words and punctuation marks, is
really a form of expression. For one thing, they say, source code
must be converted into another form, object code, before the
computer can execute the instructions. 

Moreover, they argue, source code allows computer scientists and
others to communicate precisely with each other about the details of
their work. 

"Source code is a uniquely tailored language that speaks with
tremendous precision to methodological discussion," said Raymond
Vasvari, legal director of the American Civil Liberties Union of
Ohio Foundation, which is representing Junger. 

In his decision, Judge Gwin noted that source code is generally
unintelligible to anyone outside of the programming world. But
Junger's lawyers say in their brief that this is irrelevant. "If
there were a First Amendment requirement that is met only if the
majority of people understand the speaker's message, then a speech in
Navajo, the musical score of Beethoven's Ninth Symphony and the proof
of Fermat's Last Theorem, all of which are understood by relatively
few people, would fall beyond the protection of the First Amendment,"
they wrote. 

Lawyers for the U.S. Department of Justice have not yet reviewed the
brief and therefore declined comment. Their response is expected by
the end of this month, and Vasvari said there could be hearings on
the matter this fall. 

Not everyone buys the Junger team's reasoning. Stewart A. Baker, a
Washington-based lawyer and former general counsel at the National
Security Agency, said that although he finds the Junger argument
"plausible," he believes the government has a good response. Source
code exists largely to allow for communication between people and
computers, but the First Amendment exists to protect communication
among people, he said. 

"I think in the end, the First Amendment argument is not a winner,"
Baker said. "I think the government is right, that source code is
probably better understood as a thing that changes machine behavior."

Whatever the outcome of Junger's appeal, the issues raised by the
case are unlikely to be settled in the Cincinnati courtroom. A
similar case, pending in federal district court in Washington, was
brought by an engineer, Philip R. Karn, Jr., who objected to the
requirement that he have a license to export encryption source code
on a floppy disk, even though a book containing the same code faced
no such restrictions. A second case, more like Junger's, was brought
after Daniel J. Bernstein, now a mathematics professor, wanted to
post a copy of an encryption program he had written to an Internet
discussion group. 

Unlike Junger, Bernstein won a favorable decision in United States
District Court in San Francisco. The government appealed, and both
sides are now awaiting a decision from the Court of Appeals for the
Ninth Circuit. 

Many expect the questions raised by the cases will eventually land
before the Supreme Court. 

Copyright 1999 The New York Times Company 






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